I don’t care what either of you think……
On 8 November 2012 the Court Of Appeal provided its Judgment in Capita Alternative Fund Services (Guernsey) Limited and another v Drivers Jonas  EWCA Civ 1417. Whilst a commercial valuation case, the Court of Appeal also considered an issue which is just as relevant to residential valuation. Even if the court rejects the Claimant’s expert’s valuation, can the court arrive at a valuation which is different to both experts’ figures?
The Court of Appeal stating that: “a Judge is never bound by expert evidence… Once the court has formed a view of what the correct valuation would have been… damages will be assessed by reference to that figure”. Whilst the first instance Judge had concluded that he could not place reliance on the Claimant’s expert this did not mean that the Judge could not conclude that the Defendants had been negligent and it did not mean that he could not determine damages.
Freezing Orders and Disclosure
On 8 November 2012 Mrs Justice Gloster DBE handed down her Judgment in JSC VTB Bank v Pavel & Another  EWHC 3116 (Comm). This decision considered an application for disclosure in the context of a freezing order where certain of the relevant assets were held in other jurisdictions. The Judge considered a number of authorities including Motorala v Uzan  EWCA Civ 752 where the Court of Appeal considered 5 relevant factors as to whether it was “inexpedient for the court to make an order”. The Judge determined that “it is appropriate and expedient” that an order should be made.
Easements and sale of part
On 2 November 2012 Mr Justice Morgan handed down his Judgment in Walby and Another v Walby & Another  EWHC 3089 (Ch). The matter related to a farm which the father had transferred in part to one son in 1989 and part to his other son in 2001 but without expressly dealing with rights of drainage. The Judge considered the requirements for an implied grant of easement or easement by necessity.
In his judgment Morgan J outlines the general starting position in such cases; ‘there is a prima facie rule that if the grantor of the land wishes to reserve an easement he ought to do so expressly and he ought not be allowed too readily to rely on an implication in his favour of something which he did not express’. This rule is subject to the, non-exhaustive, exceptions of easements of necessity, mutual easements and easements of intended use.
The Judgment presents a brief outline of each exception. Firstly, according to Morgan J, ‘[t]he test for necessity is a strict one. The facts must be such that the land retained cannot be used at all without the implication of an easement’. The second exception, mutual easements, is based upon the reciprocal nature of rights in relation to those rights with the grant is taken to have transferred. Finally, an easement of intended use will be implied where it is ‘necessary to give effect to the common intention of the parties’ (per Lord Parker in Pwllbach Colliery Co v Woodman ).
In this case none of the claims for an easement were made out and the claim failed.
Adverse Possession: Who decides?
On 7 November 2012 Mr Justice Eady handed down his Judgment in Swan Housing Association Limited v Cary Gill  EWHC 3129 (QB). The proceedings concerned the Housing Association’s attempts to seek an “anti-social behaviour injunction” restraining the Defendant’s use of a passageway and a garden. The Defendant claimed in response adverse possession of the passageway and a garden. The Defendant sought to adjourn the trial at first instance on the basis he was going to make an immediate application to the Land Registry to register title by adverse possession. At first instance the court had prevented the Defendant from applying to the Land Registry to seek to register title. On appeal it was determined that it was for the Land Registry to determine issues of adverse possession save for example where there was a claim for possession. The ongoing proceedings would therefore be adjourned to allow the Defendant to make an application to the Land Registry.
My word is enough…
On 12 November 2012 Mr Prosser QC sitting as a Deputy Judge of the High Court, handed down Judgment in an appeal from the Land Registry Deputy Adjudicator in the case of Yeates and Yeates v Line and Field  EWHC 3085 (Ch).
The Claimants had applied to alter the register to reflect their ownership of a piece of land by adverse possession. At the adjudication it was decided that the neighbours had reached a binding oral compromise agreement sealed by a handshake as to the boundary. Under the agreement the Claimants had consented to the Defendants erecting a fence across the land the Claimants had claimed to have adversely possessed. The Claimants claimed the oral agreement was void because it did not satisfy the requirements of s.2(1) Law Of Property (Miscellaneous Provisions) Act 1989 (e.g. was not in writing) and therefore should be no bar to their application. The Deputy Adjudicator disagreed. She found that the Claimants had indeed acquired the land by adverse possession but that the oral compromise agreement amounted to exceptional circumstances which justified not altering the register under paragraph 3(3) of Schedule 4 of the Land Registration Act 2002.
Mr Prosser QC upheld the Deputy Adjudicator’s decision on appeal. The oral agreement did not need to satisfy the requirements of s.2(1) Law Of Property (Miscellaneous Provisions) Act 1989 because even though it had “disposing effect” it did not have a “disposing purpose” as was required for a contract to be caught by s.2(1). The compromise agreement was therefore binding.
Just how rare is registration fraud?
Very rare according to the Land Registry (October 2012) whilst conceding that in the year 2011/12 they made 52 payments for registration fraud at an average of £150,000 per claim i.e. c. £7.8m.
50% cap for DBAs on commercial cases
Damages based agreements or DBAs are the proposed contingency fee model to be implemented in April 2013. Parties will be able to agree with their lawyers that the lawyers can be paid a percentage of the damages in successful cases. The main debate has been whether the percentage should be capped in commercial cases.
On 25 July 2012 the Civil Justice Council Working Party on DBAs stated: “Category (i) is likely to involve sophisticated purchasers of legal services entering into contractual arrangements where freedom of bargaining should not be inhibited….in this category of commercial case there should not be a cap on the contingency fee.”
This recommendation has been rejected and damage based agreements on commercial cases will be restricted to a maximum of 50% of damages.
Solicitor Insurance News
The SRA has reported (November 2012) that 22 qualifying insurers have underwritten law firms this policy year and that in the last year of the Assigned Risk Pool just 22 firms remain in the ARP.
Client Accounts: the story that won’t go away
On 17 November the Chief Executive of the Law Society indicated that the Law Society would be looking again at the question of client account and whether something could be put in place of the traditional client account. This follows, for example, the introduction by the Bar Council of a facility by which barristers can hold clients monies by a “third party escrow account”.